Delhi District Court
Unknown vs . State Of Bihar And Anr., (2000) 9 Scc 82; ... on 24 December, 2018
IN THE COURT OF SHRI ABHISHEK KUMAR,
METROPOLITAN MAGISTRATE : WEST-05,
TIS HAZARI COURTS, DELHI
FIR No. : 91/2007
P.S. : Anand Parbat
Case ID No. 59865/2016
State
v.
1) Rajesh S/o Sh. Sohan Lal,
R/o B-3/352, Nand Nagri, Shahdara, Delhi-110093.
2) Surender S/o Sh. Sohan Lal,
R/o B-3/352, Nand Nagri, Shahdara, Delhi-110093.
3) Sunil S/o Sh. Sohan Lal,
R/o B-3/352, Nand Nagri, Shahdara, Delhi-110093.
Date of institution of case : 15.09.2008
Date of reserving the judgment : 15.12.2018
Date of pronouncement of judgment : 24.12.2018
JUDGMENT
1. S. No. of the Case: 59865/2016
2. Date of Commission of Offence: 24.03.2007
3. Date of institution of the case: 15.09.2008
4. Name of the complainant: Sh. Jai Bhagwan
FIR No. 91/07 State v. Rajesh & Ors. 1 of 12
PS Anand Parbat
5. Name of the accused: Rajesh, Surender and
Sunil
6. Offence complained or proved: 323/452/506/34 IPC
7. Plea of Accused: "Not Guilty"
8. Final Order: Convicted
9. Date of Final Order: 24.12.2018
BRIEF FACTS AND REASONS FOR DECISION
1. In brief, the story of prosecution is that on 24.03.2007 at about 7:00 A.M. at House No. 656/A, Gali No. 3, Punjabi Basti, Anand Parbat, Delhi all the accused persons had entered into the above said house and caused simple injuries to the victims Manoj, Mahender and Jai Bhagwan and further criminally intimated the said three victims. Accordingly, the present FIR was registered against the accused persons for offences punishable under Section 323/452/506/34 IPC. After completion of investigation, charge sheet was filed against the accused persons on 15.09.2008 and cognizance was taken on the same day. The accused persons appeared before the Court in pursuance to the summons. The documents were supplied to the accused persons in compliance of the section 207 CrPC.
2. Charge was framed for offences punishable u/s 323/452/506/34 IPC against the accused persons on 26.11.2010 to which they pleaded not guilty and claimed trial. Thereafter, the matter was fixed for the FIR No. 91/07 State v. Rajesh & Ors. 2 of 12 PS Anand Parbat prosecution evidence.
3. In prosecution evidence, the prosecution has examined ten witnesses. After the prosecution evidence was closed, the matter was kept for the statement of the accused persons. The same was recorded on 18.12.2017. The accused persons did not lead the defence evidence, despite opportunity. Thereafter, the final arguments were heard and matter was kept for orders.
4. At the onset it would be appropriate to have glance at the ingredients of the offences charged :
Section 323 IPC. Punishment for voluntarily causing hurt. Whoever, except in the case provided for by Section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 452 IPC. House-trespass after preparation for hurt, assault or wrongful restraint.
Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall FIR No. 91/07 State v. Rajesh & Ors. 3 of 12 PS Anand Parbat also be liable to fine.
Section 506 IPC . Punishment for criminal intimidation. Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc.- and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or [imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Section 34 IPC. Acts done by several persons in furtherance of common intention.
When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
5. Before proceeding further, it is necessary to discuss the relevant legal propositions applicable to the facts of the present case. It is settled proposition of criminal law that the prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. It is also settled that primary burden of proof FIR No. 91/07 State v. Rajesh & Ors. 4 of 12 PS Anand Parbat for proving offence in a criminal trial rests on the shoulders of the prosecution, which burden never shifts on the accused. It is no longer res integra that accused is entitled to benefit of every reasonable doubt appearing qua material facts of the prosecution story whereby such reasonable doubt entitles the accused to acquittal.
6. To prove the case against the accused persons the prosecution was obliged to prove the following :-
- that the accused persons Rajesh, Surender and Sunil had entered the house of the complainant Jai Bhagwan on 24.03.2007;
- that the accused persons in furtherance of their common intention, had caused simple injuries to the injured persons namely Manoj, Mahender and Jai Bhagwan on 24.03.2007.
- the accused persons had criminally intimated the victims for not reporting the crime to the police or to face dire consequences.
7. During the course of final arguments, the Ld. Counsel for accused persons has argued that the prosecution could not prove its case beyond reasonable doubt due to the improvements and contradictions in the testimony of the injured persons and they do not inspire confidence. The counsel has stated that the contradictions can be found in the testimony of PW1, PW2 and PW3 who had never stated to the IO at the time of the incident that the accused persons had brought rods by which they were hit and they have falsely implicated the accused persons as they wanted to pressurize the accused persons to leave the building in which the FIR No. 91/07 State v. Rajesh & Ors. 5 of 12 PS Anand Parbat victims were also residing.
8. The prosecution in order to prove the FIR and to show that the criminal machinery was brought into action on the same date of incident and there was no delay in the registration of the FIR has examined PW6 who has stated that he had received rukka from ASI Gyan Chand on the basis of which he had registered the FIR at around 4:10 P.M. and PW8 and PW9 had established the receipt of DD No. 10A regarding quarrel at the place of incident.
9. It is the case of the prosecution that a quarrel had taken place at the house of complainant Jai Bhagwan at House No. 656/A, Gali No. 3, Punjabi Basti, Anand Parbat where the accused persons had entered his house and beaten him as well as his brothers Manoj and Mahender and all of them had received simple injuries. The prosecution has relied upon the testimonies of injured persons to prove its case and all the injured persons namely Manoj, Mahender and Jai Bhagwan have categorically identified the accused persons as the persons who had attacked them on the date of incident. The witnesses identified the accused persons before the Court also. The testimony of these witnesses as prosecution witness 1, 2 and 3 are corroborative and in tandem with each other. The witnesses have also deposed clearly with regard to the injuries received by them. The witnesses have also clearly stated about the place and the time of the incident that they were present at their house when the accused persons entered the same and started beating the injured Jai FIR No. 91/07 State v. Rajesh & Ors. 6 of 12 PS Anand Parbat Bhagwan and when the other two victims tried to save his brother Jai Bhagwan, they were also attacked by the accused persons and were left injured on the spot. The accused has asked the witness PW1 Jai Bhagwan and he has admitted the suggestion that a few days prior to the date of incident, his brother Mahender had slapped accused Sunil due to a quarrel between their children. Thus, the motive for attacking the victims has also come on record and it appears that the attack was to take the revenge from the victims for slapping the accused Sunil. The arguments that accused persons have been falsely implicated due to the above stated incident is devoid of merits as the accused Sunil could have aproach the local police for the action of victim Mahender against him. The witnesses PW1, PW2 and PW3 have stood firm to their eye witness account and they could not be shaken as to the place, date and time of the incident and the identity of the accused persons. The testimony of these witnesses inspire confidence and no material contradiction is found and further their testimonies also corroborated. PW4 Smt. Omwati who has stated that she has seen the accused persons beating her brother in law Jai Bhagwan when he had opened the door and they had also beaten her husband and another brother in law Manoj due to which they received injuries on various parts of their body.
10. The arguments that the victims did not mention about the weapon of offence in their statements given to the police is not a material contradiction as the recovery of weapon of offence is not material when the injuries have been proved sufficiently qua the testimony of the FIR No. 91/07 State v. Rajesh & Ors. 7 of 12 PS Anand Parbat witnesses PW5 Dr. Suman Banerjee and PW7 Dr. Rahul who have proved the injuries and the examination of the victims qua the MLCs which are Ex.PW5/A and Ex.PW5/B. I will support my view with judgment of the Hon'ble Apex Court in case titled as Yogesh Singh v. Mahbeer Singh and another ( criminal appeal no 1482 of 2013) as follows:
" ...47... In any case, it is an established proposition of law that mere non-recovery of weapon does not falsify the prosecution case where there is ample unimpeachable ocular evidence. [See Lakahan Sao Vs. State of Bihar and Anr., (2000) 9 SCC 82; State of Rajasthan Vs. Arjun Singh & Ors., (2011) 9 SCC 115 and Manjit Singh and Anr. Vs. State of Punjab, (2013) 12 SCC 746]."
11. The defence counsel has also argued that the prosecution did not examine any independent witness despite the fact that the area where the incident taken place is a residential area and it has come in the testimony of witnesses that public had gathered there. Generally, it is seen that in todays scenario, the people does not wish to be associated with any police investigation and they may tell things to the police officials informally but does not wish to be named as a witness which makes it impossible for the prosecution to bring on record any independent witness apart from the parties in question to establish the case. The FIR No. 91/07 State v. Rajesh & Ors. 8 of 12 PS Anand Parbat accused cannot be allowed to take the benefit of this when the testimony of the injured persons inspires confidence and the same can be relied without the examination of independent witness. In order to support my view, I will rely upon the Judgment of Apex Court in case titled as "Sadhu Saran Singh v. State of U.P. in criminal appeal no. 1467-1468 of 2005" in which the court has held that the case of the prosecution cannot be doubted only on the ground that no independent witness was examined. The relevant para of the judgment is as follows:
"... 21 ... vi) As far as the non - examination of any other independant witness is concerned, there is no doubt that the prosecution has not been able to produce any independant witness. But, the prosecution cannot be doubted on this ground alone. In these days, civilized people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the court as they feel it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of indepedant witness as long as the evidence of the eyewitness, though FIR No. 91/07 State v. Rajesh & Ors. 9 of 12 PS Anand Parbat interested, is trustworthy."
12. In case titled as "Govindaraju v. State (AIR) 2012 SC 1292" in which the Court has held that it is not the number of witnesses that matters but the substance and it is not necessary to examine large number of witnesses if the prosecution can bring home the guilt of the accused even with the limited number of witnesses.
13. When the prosecution has made all the efforts to establish the case by the examination of the witnesses, it cannot be expected that they remove each and every doubt as the prosecution is bound to establish the case beyond reasonable doubt and not every doubt. It will be relevant to refer to the Judgment of Hon'ble Supreme Court in case titled as Yogesh Singh Vs. Mahabeer Singh in Crl. Appeal No. 1482 of 2013 in which the Court has stated that the prosecution is only to establish its case beyond all reasonable doubt and not all doubts. The relevant paragraph of the Judgment is as below:-
"It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. However, the burden on the prosecution is only to establish its case beyond all reasonable doubt and not all doubts. Here, it is worthwhile to reproduce the observations made by Venkatachaliah, J., in State of U.P. v. Krishna Gopal and Anr,, (1988) 4 SCC 302: (AIR 1988 SC 2154, Para 13). "25. ... Doubts would be called reasonable if they are free FIR No. 91/07 State v. Rajesh & Ors. 10 of 12 PS Anand Parbat from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overe motional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case....."
14. The defence counsel has stated that the IO does not remember anything about the incident and which makes the case of prosecution doubtful. Considering the fact that IO had retired and his cross examination was conducted after a period of 10 years, it cannot be expected out of him to remember each and every thing with regard to the incident and any contradiction if found in the testimony of the witness being the IO, will not go to the root of the case when the entire incident and the chain of events stands established qua the testimony of other relevant witnesses.
15. In view of above findings and in my considered opinion, the prosecution has been able to prove its case against the accused persons beyond reasonable doubt as it is proved through the testimony of prosecution witnesses that the accused persons in furtherance of their common intention had inflicted simple injuries to the injured persons FIR No. 91/07 State v. Rajesh & Ors. 11 of 12 PS Anand Parbat namely Manoj, Mahender and Jai Bhagwan. Therefore, the accused persons namely Rajesh, Surender and Sunil are hereby convicted for the offence under section 323/452/34 IPC. However, no cogent proof has come on record to establish the offence under Section 506/34 IPC. Thus the accused persons stands acquitted for offence u/s 506/34 IPC.
16. Ordered Accordingly. Copy of this judgement be given free of cost to convicts.
Digitally signed by ABHISHEK ABHISHEK KUMAR
KUMAR Date: 2018.12.24
14:50:04 +0530
Announced in open Court (ABHISHEK KUMAR)
on 24th day of December 2018 Metropolitan Magistrate
West-05, Delhi
FIR No. 91/07 State v. Rajesh & Ors. 12 of 12
PS Anand Parbat